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Eradicating ecocide at Rio

Rio+20 is a once-in-a-generation opportunity for world leaders to back an international law against the mass destruction of ecosystems, write Sarah Cunningham and Louise Kulbicki.

Twenty years ago, world leaders met at the 1992 Rio Earth Summit and put in place goals and binding legal agreements to combat a number of social and environmental crises in an attempt to achieve a sustainable future.

Today, in 2012, we can see that we failed. The planet’s economic output has more than doubled. Yet a billion people are starving. The gap between rich and poor is widening. We are seeing on a scale never seen before in history the mass damage and destruction to the environment, the earth system and all life on Earth.

Why, when we know these things, when we are all striving for the same beautiful vision of a future we all want, have we failed to achieve it?

International environmental barrister Polly Higgins believes that the root of our problems lies in the law. The problem is that it is the law to put profit first. Currently, a corporation is duty bound by law to maximise profit for its shareholders. This pursuit of individual economic interests regardless of the negative consequences – even mass damage and destruction to the Earth – is a hindrance to sustainable development.

But this can be changed by creating an international law of ecocide, where mass damage and destruction can be prohibited.

To achieve true sustainable development and ensure our right to life is truly protected, we need to outlaw destructive business practices once and for all and create a law that opens the floodgates to green, clean and life-enhancing business. Making ecocide a crime would do just that.

Ecocide is defined as the mass “damage, destruction to or loss of ecosystems of a given territory, whether by human agency or by other causes, to such an extent that peaceful enjoyment by the inhabitants of that territory has been severely diminished”.

This law would be a transformative law, putting an end to mass damage and destruction once and for all. It would act as a massive, pre-emptive mechanism to stop investment in destructive industrial activity, by holding those who commit ecocide – including heads of states and CEOs – personally liable for the crime. It will make business sense to invest in the green economy.

Time and time again throughout history, the moral imperative has trumped the economic imperative: the abolition of slavery, apartheid and now ecocide.

In April 2010, Higgins proposed to the UN Law Commission that the Rome Statute be amended to include the fifth missing international crime against peace: ecocide. The idea for such a law was developed further in her book Eradicating Ecocide, and in 2011 she launched a global campaign of the same name to drive forward that law.

It is already an international crime to cause widespread, long-term and severe damage to the natural environment during war-time. Legal definitions of what constitutes mass damage and destruction in war-time are already in place. We also already have a piece of legal hardware that sets out the four core international crimes and the International Criminal Court to prosecute these. It only takes one party to the Rome Statute to call for an amendment, and then for 80 state parties to agree, for that to be declared a lawful amendment.

Rio+20 is a once-in-a-generation opportunity for our world leaders to come together and make a commitment to implementing an international law of ecocide. Once implemented, there will be a five-year transition phase to allow for subsidies to be redirected and businesses to adapt become leaders in the green economy.

Earlier this year, a concept paper called “Closing the door to dangerous industrial activity” [pdf] was submitted to all governments. It set out the legal premise for amending the Rome Statute and the roadmap for implementation. At the UN Copenhagen climate conference in December 2009, it was agreed by virtually all governments that exceeding a two-degree Celsius increase in global temperatures (above pre-industrial levels) is “dangerous”. There is now supporting evidence to say that, before the end of the century, we are looking at a three- to six-degree temperature rise as a result of continued use of fossil fuels.

Thus it can be argued that to continue with existing industry that puts humanity at risk of loss of life is a breach of the human right to life – and continued use of fossil fuels can be termed as dangerous industrial activity. Where dangerous industrial activity puts humanity at risk of loss of life, governments, Higgins argues, already have a legal duty of care to act.

Higgins’s second book, Earth is our Business, takes forward the argument, by proposing a new type of Earth law: a new form of leadership which places the health and well-being of people and planet first. Law can provide the tools and be a bridge to a new way of doing business. She argues that the Earth is the business of us all, not the exclusive preserve of the executives of the world’s top corporations. Included as appendices are a draft Ecocide Act and a proposal for revising World Bank investment rules. The proposals are far-reaching; Higgins has set out a path to a world that is paved with promise of a world-wide stable and prosperous economy.